David Boies made his name as a litigator helping break up the Microsoft monopoly and fighting for Al Gore in the Supreme Court. Until yesterday, his career helping the wealthy and powerful dispel unwanted scrutiny remained under the radar.
Fresh insights into Boies’ work appeared on Nov. 6 in a bombshell story (paywall) in the New Yorker about Harvey Weinstein, the recently disgraced Hollywood mogul. It details how Weinstein used private investigators and attorneys to prevent journalists from publishing allegations that he had sexually assaulted women, and to undermine the women. According to the story, Boies and his firm, Boies Schiller Flexner, paid a former intelligence operative who worked under a false identity to wheedle information from journalists and sources alike—among them Rose McGowan, an actor whose allegations against Weinstein played a part in his downfall.
This is hardly the first time that Boies has pushed the boundaries when fighting back against a story. “That firm’s name has become synonymous with scorched earth intimidation, just brutal, heavy-handed legal maneuverings,” one reporter who has dealt with Boies told me.
In 2015, for example, when the Wall Street Journal was investigating fraud at Theranos—a start-up that promised a revolutionary new blood test—the company hired Boies to push back. At one point, the Journal reported, two attorneys from his firm pressured a Theranos employee (paywall)—a grandson of former US secretary of State George Schultz—to admit that he had spoken to reporters and reveal other employees who had done the same. When he would not, they pressured him to sign a confidentiality agreement.
Boies and a team of lawyers also came to the Journal’s offices to meet with the reporter and editor working on the Theranos stories, Vanity Fair reported. They accused the Journal of possessing trade secrets and threatened a lawsuit. The meeting did not deter the Journal’s reporting, which would win its author, John Carreyrou, a George Polk award, and provoke a wave of lawsuits and investigations into the now disgraced company.
In 2014, Boies’ firm represented Sony after the entertainment giant was the victim of massive hack. Embarrassing e-mails and proprietary documents were available online and journalists began using them to write stories about Hollywood insiders. Boies sent letters to major media outlets threatening lawsuits if they published. The threats were seen as over-reach, even bluffs, but legal reporter Alison Frankel wrote that the real message, according to media lawyers, was “simply to put news organizations on notice that Sony is watching them.”
“In general, I don’t think it’s appropriate to try to pressure reporters,” Boies told the New Yorker of his work for Weinstein. “If that did happen here, it would not have been appropriate.”
A web of conflicts
Boies’s heavy-handed tactics are often accompanied by apparent conflicts of interest.
After the Wall Street Journal published its first story questioning Theranos’ technology, Boies joined Theranos’ board of directors, a move that drew immediate public attention (paywall) because he would be legally bound to represent both the company’s management and its shareholders. Eventually, he would stop representing the company and leave the board over disputes on legal strategy.
Even as he was trying to kill a New York Times story about Weinstein, Boies was also representing the newspaper in an unrelated matter. The newspaper issued a statement calling the situation “intolerable conduct, a grave betrayal of trust, and a breach of the basic professional standards that all lawyers are required to observe.”
Boies even had a similar conflict of interest vis-à-vis Weinstein himself.
Before the wave of testimony about Weinstein’s behavior, and the subsequent outing of many other powerful men as sexual abusers, Boies was not only working to insulate his client from the consequences and representing him in contract negotiations with the shareholders of The Weinstein Company (TWC), but also continued to represent the company itself. In 2009, for example, Boies’ firm worked on a legal dispute over the rights to air “Project Runway,” which recently removed any mention of Weinstein’s name and company from its credits.
Independent directors of the company cried foul and told the Financial Times later (paywall) that Boies had blocked their attempts to learn more about past allegations of sexual assault by Weinstein. “If the question is: how was Harvey’s conduct enabled?” one of the directors told the paper. “It was largely enabled by his attorneys and their obfuscatory tactics.” In a response to the FT story (paywall), Boies said that “the board was fully aware and accepted my representation of Harvey Weinstein on certain matters and the company in certain other matters,” and suggested that the directors were attempting to distract from their own tolerance of Weinstein’s behavior.
In yet another conflict, the attorney who eventually reviewed Weinstein’s personnel file on the directors’ behalf was Rodgin Cohen, another legendary attorney. He told the board it contained no claims that would represent a liability to The Weinstein Company. According to the FT, Cohen’s son, however, was employed by the company at the time. (Cohen says the board knew this.)
Separately, Boies invested in a film production company that co-produced at least two movies with TWC, and another that was distributed in Japan by Sony Pictures, another Boies client. The producer who manages the Boies/Schiller Film Group is the son of Boies’ law partner. In a 2015 American Lawyer profile, he said the production company’s name (pdf) is similar to that of the law firm “so that people understand that while I’m a small operation, if people don’t abide by the fee documentation and the spirit of the deals, there’s a caged gorilla in the back of the office.”
“David Boies is the personification of integrity, and that gives them a tremendous advantage in our business,” Weinstein said in the same story.
The other side of Boies
Not every interaction between Boies and the press is characterized by over-the-top threats. Another reporter who worked on a controversial story involving a Boies client told me that their interaction had been a typical of the relationship between journalists and attorneys dealing with sensitive points of fact: Rigorous but not pushing ethical boundaries.
Nor is Boies the only attorney who has attracted attention as he tries to diminish it. Charles Harder, a member of Weinstein’s legal team whose victory over Gawker caused the media site to shut down and chilled the entire industry, is known for pulling no punches. He has since left Weinstein’s team. Another former Weinstein attorney, Lisa Bloom, known for representing victims of sexual harassment suits, also quit representing the movie mogul. She saw her reputation tank while defending Weinstein after he had bought the film rights to a book she had written.
For now, Boies remains best known for feel-good work like his bipartisan defense of gay marriage in 2008 or suing to end the electoral college with law professor Larry Lessig. His work sinking stories about the powerful attracted far less attention until it backfired so publicly.